Saturday, May 25, 2013

Use Caution Not to attempt to Predict Outcomes

I've had a hard week.  I mediated four employment cases:  allegations of pregnancy discrimination (termination while on leave after the baby was born), disability discrimination (failure to promote by a current governmental employee), sexual harassment and a whistleblower case (by a warehouse worker based on his complaints of noxious fumes in the workplace).  It's been ten years now that I have been mediating.  It's a real risk that I believe I can predict values and outcomes based upon the briefs even before I meet any of the disputants.  Also, I work with a group of highly skilled mediators and former Judge's, who often engage in banter during our cases about their guess on values and outcomes. 
     My week's efforts were met with varying degrees of success.  In the first, I would never have imagined that the case or the facts had such a high value--but it settled easily and to the great relief and satisfaction of both parties.  In the next, the government's attorney refused to make any offer, despite the Plaintiff's attorney reducing his demand to 1/4 of his initial demand.  In that one, I believed that if I could just get Plaintiff to come down to a reasonable number, the Defendant would reward that gesture by making an offer, particularly since the Plaintiff was still working there.  Alas, complete and utter shut down.  Inexplicable and unexpected.  The sexual harassment case is still being negotiated, but suffice it to say the values being discussed are beyond my highest expectations. 
     The point in all of this rant is that after awhile, a seasoned mediator has a tendency to make predictions of outcomes which can obfuscate the negotiation.  Yes, it's helpful to get everyone into that coveted "zone of possible agreement" early on, but occasionally the contours of the end zone are entirely different than my expectations and I am reminded that there are many factors beyond the facts and law that influence the ultimate settlement (or not) in every case. 

Saturday, May 18, 2013

Mine for the Unspoken Interests at the Heart of the Matter

I had the privilege of attending a training with Kenneth Cloke this past week.  That was not unusual, I have attended many trainings with him before.  He is the author of many ADR books and articles and a local treasure here in Southern California. 
     What was unusual was that he was addressing an audience of United States District Court Attorney Settlement Officers:  those of us who mediate disputes within Federal Court.  All of us have at least 10 years of experience as attorneys in Federal Court and are sophisticated commercial mediators dealing with high stakes cases. 
     But Ken speaks and trains on a different plane:  he looks for the underlying issues in every conflict:  the root of the anger and the fear which underlies it.  And then he digs deeper:  into the love that drives the fear of the possibility of loss, pain and grief.  Ken sees a direct connection between anger and caring in a relationship.  He prodded us into deep listening in order to excavate the truth that goes well beyond the pleadings in a lawsuit.  He reminded us to bring our own hearts with us to every mediation. 
     Ken quotes both Albert Einstein:  "Make everything as simple as possible, but no simpler" and the poet, Pablo Neruda:  "Every casual encounter is an appointment" as he reminded us to bring ourselves into the mediation room and be fully and actually present and available to the disputants before us.  Only then is it possible to have those dangerous conversations which may ultimately lead to the path towards a lasting resolution of conflict.
     Though we may become complacent in our everyday negotiations which quickly devolve into a conversation that is only about the money being exchanged, it's a critical reminder that we are also engaged in helping people in pain and crisis to get beyond their grief:  indeed, that is the essential heart of every matter in mediation.

Saturday, May 4, 2013

Is it Worth It?

Clients are more demanding than ever in evaluating whether the expense of litigation is worth the potential gain.  Mediators, therefore, should always inquire about each disputant's agenda early in the process.  For the Plaintiff and her lawyer, the questions revolve around how much more will they get if they invest in more discovery, spend more hours opposing pivotal motions, spend more money getting witnesses to testify on their behalf.  Are they at the mediation to find that out or to settle for what they may get after a Motion for Summary Judgment has been denied?  For the Defense, it's sometimes a question of how much they will have to spend if they don't settle at that time, in order to get a better result than the one offered at the time of the mediation hearing.  Not all parties come to the mediation with settlement as their ultimate objective!

I find that very often the mediation of a litigated dispute is, in fact, educational.  One side learns what the other is willing to pay and/or accept before all of the unknowns are established.  They begin to appreciate what evidence each side has established and will rely upon to prove or disprove their case.  Yes, there may be a crucial witness who will clarify the issues, but in order to be sure, they have to be found, statementized and then, perhaps, a motion based upon their testimony has to be filed, heard and granted.  There may be disputed issues of law which a Judge may declare in one or the other side's favor.  This, of course, is usually subject to challenge at a higher level and may take years to finally discern.  Finally, there is often a mere question of how much the Plaintiff will take before or after the filing of a Motion for Summary Judgment, and is it worth the expense and risk of moving forward with such a hearing?

In cases with smaller values, it is almost always at least sensible to explore this through mediation before the big expenses are incurred.  Your clients deserve no less and, as Abraham Lincoln, said:  "Discourage litigation. Persuade your neighbors to compromise whenever you can. As a peacemaker the lawyer has superior opportunity of being a good man. There will still be business enough."